Reynolds, Henry --- "A Just Settlement" [1988] AboriginalLawB 38; (1988) 1(33) Aboriginal Law Bulletin 7

• A Just Settlement

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A Just Settlement

by Henry Reynolds

A re-evaluation of Anglo-Australian history suggests that a sound basis for legal concepts such as compensation and immemorial possession could be the assumption that Aboriginal title has never been extinguished.

I want to consider whether a settlement between Aboriginal and white Australia in this generation is possible. Clearly a settlement has to be made in Australia quite apart from support from international agencies and international opinion. It also has to be made with the Australian and possibly with state governments. Such a settlement needs substantial popular, if not necessarily majority, support. Let us remember that this is in a climate of shrinking government expenditure, of a drift to the right where a right wing government faces a less competent right wing opposition. So one question we have to ask at the very beginning is: Is a just settlement possible in this generation? Clearly if the answer is no, there would be nothing more to be said. So we will work on the assumption that a settlement with Australia in Australia in this generation is realizable.

That being so, what measures are needed? Obviously land is central to the issue because that injustice began at settlement. The traditional legal view, which is of immense importance, is that in 1788 Britain gained not only sovereignty over Australia, or eastern Australia, but also ownership of all the land. Unlike America, Canada or New Zealand, there was no recognition whatever of any rights in the indigenous inhabitants: It was a terra nullius. That legal view could only be sustained by assuming that the Aborigines were either not here at all or they were not in actual occupation of the land as that was understood by Europeans. That fundamental problem is still at the heart of the Australian legal system, and it can't remain if there is any hope of justice, or of the legal system coming into synchronization with the historical reality both before 1788 and since 1788.

That is a fundamental legal problem. One of the ways to come to grips with it is to adopt the opposite assumption: that the Aborigines were in possession and, where they are still on their land, possession has never ceased; where there is some doubt about it, it is up to the govemment to show when and how the Aborigines ceased to be in possession. In other words, in a case like the Gove land rights case of 1971, instead of the Yirrkala having to prove theirrights to land, it should havebeen the government that had to prove that the Yirrkala weren't in possession of their land since time immemorial. Land rights for people with traditional links to their land, particularly Crown land or land held under lease, seems to me to be the fundamental first step in dealing with the basic problem.

That's not the end of it: There is also the question of compensation, which has in many ways been wrongly presented in terms of persuading white Australian audiences. It seems to me that we should have used simple arguments.

One argument focuses on the rights devolving from immemorial possession. This concept is in Blackstone, it's there in the heart of the common law, it's there in Roman law. A second argument focuses on the right for compensation where the State takes the land of the individual. Once again, this is at the very heart of English law and has been at the heart of Anglo-Australian law since 1788. We are talking about: rights based on immemorial possession; the right to compensation; and the right of inheritance. These concepts are not foreign to our legal system. Compensation should be on the agenda simply because it is what would be expected for anyone whose land had been taken by the state. Indeed, that is to be one of the proposals for the up and coming referendum.

If compensation, then, is considered the norm, the question arises: how should this be done for land that has been taken in thepast? This is a more difficult question. Let me suggest three possible alternatives: One is that it should be argued case by case by individual groups. However, there would be a high chance of failure, it would be extremely time-consuming and it would be difficult for many groups to prove their links with a particular piece of land. So let me move on to other propositions.

The second alternative is for an overall settlement that would see the Federal government purchasing the native title of all land that was held by Europeans on the assumption that native title had never been extinguished. That may seem a rather strange proposition, but let me point out that this sort of settlement has been reached in Alaska and in the North West of Canada. In Alaska there was no doubt that the American government had sovereignty; they had bought the land from the Russians. Yet they bought the native title in a settlement which included very large cash payments of about $900 million, the grantof freehold to asubstantial part of that land, aid, mining rights, and hunting and fishing rights. This has the attraction of being fairly straightforward and simple in concept. But it is clearly more difficult when you think of how it can be done.

We have to consider whether Canadian precedent is helpful in Australia. The situations are, after all, quite different. The governments have had treaties with Indians in America and Canada for 200 years. They have purchased Indian land since the 17th Century. There are several hundred treaties which werere-examined in recent years by the Indian Claims Commission. That is a very different tradition to the one we have. So although I think the proposition still has some merit, one would have to ask whether it is possible given the current circumstances of Australian politics and public opinion.

If, then, American, Canadian and even New Zealand history is useful only as a guide, is there something based on Australian history which wecan doin terms of compensation?

This is one of the arguments I presented in my recent book "The Law of the Land", where I suggested that we have been too ready to dismiss the past as though it belonged to our opponents and supported them rather than the causes we favour. I've argued firstly that there is little evidence that the British govemment intended for all land to be the property of the Crown in 1788. That is merely a later assumption. There was also a belief, which runs through the discussions, the private letters, thejoumals and the official papers, in the obligation to provide what they called at the time an 'equivalent' for what had been taken. In other words there was a recognition of the need for compensation.

The idea of compensation for land is very old; it has been in our history for 150 years. I think we could well explore the ways in which governments, particularly the British government, did endeavor to provide compensation. An illustration of what I’m suggesting is that one way which compensation was provided was by creating reserves. It is my argument that reserves were created in recognition of Aboriginal rights; this is the way reserves were seen by Imperial authorities; it is the way they were recognised in international law; it is the way they have been seen in overseas countries; and it is the way Aborigines in Australia in the 19th century saw them. They weren't a gift, they were compensation in recognition of Aboriginal rights.

In recent court cases in North America, the Supreme Court of Canada in a unanimous judgement determined that where reserves had been created in the 19th century without the permission and even against the will of the Indians of British Columbia, the Indians of contemporary Vancouver retain an economic interest in that land. This seems to me to be the tradition we should latch on to.

What I'm suggesting is that we should find what there is in history that is usable in the courts by insisting that all existing reserves should as a matter of course be seen as under Aboriginal title. All reserves that were created at least from Flinders Island onwards in the 1830s - and there were many of them, possibly a hundred or more -should be considered as compensatable. We should make a serious attempt to determine their economic value at the time that they were taken away from Aborigines, and we should repay that amount plus interest up to the present. That would be a substantial amount of money.

The reserves are only one way in which we can use ou own history. There were at least two attempts in our history to provide financial compensation for Aborigines. The first and most important of these was the result of pressure by the Imperial govemmentwhich led to the insertion of a clause in the 1889 Constitution Act of W A under which 1% of revenue was to beset aside for Aborigines. If we were to calculate 1% of revenues, plus interest since 1889, minus expenditure on Aborigines in that period, it would he a substantial sum. The second attempt by past Australian governments to provide financial compensation was the Imperial guidance in the 1840s by which a set percentage of land revenue should be set aside for the use of Aborigines. This could be worked out on a sum of 5% of land revenue since the 1840s. Finally, there was the acceptance of therights of Aborigines to remain on their land and use their land; this applied to all land held under pastoral lease.

We should put creative historians together with creative accountants to come up with a sum based on our own historical experience as the beginning of our claim for compensation.

Given, then, that there was an historical recognition that compensation should be afforded, and that this can be used as a basis for a just settlement, people may ask what sort of compensation are we talking about. In North America in thel9th century it is estimated that Indian land was purchased for about a billion dollars. The Indian Claims Commission handed out something like a further $800 million. Settlement for Alaska was $962 million. Obviously compensation would run into billions of dollars, and that's where our problem arises.

The amount sought in compensation may be so large that it would frighten the electorate and government away from even considering the proposition. Clearly that is a very real problem. It may, be necessary, therefore, to trade off compensation for autonomy. Money to be expended on Aborigines should be seen not as charity, welfare, agift, or handout, but as compensation. That would erode one of the central conflict points between whites and Aborigines. Aborigines have always seen money spent on them as their just right. White Australians have, over and over again, made it clear that they regard such expenditure as a handout; a handout for which Aborigines should be grateful and for which they get things that white Australians don't.

Up to this point I have mainly considered land, but there is also the question of culture. The settlement of Australia led to the wide-scale destruction of languages, religions, histories and cultures. Australians grew up in a context of 150 years of racial contempt and derision. European thinking systematically and perpetually derided people it considered savages and primitives. There are, therefore, extremely important cultural tasks yet to be done.

There must be greater endeavors to preserve what is left of Aboriginal cultures, languages in particular. Further, there has to be a much greater commitment to put sufficient about Aboriginal society and culture into our education system that white Australians unlearn the racism of the last 150 years. As I've argued in several of my books, Australia was more racist in 1940 than it had been in 1840. It is critical for our relationship not just with Aborigines, but with our whole environment, that we unlearn our racist attitudes. We are not in a European environment. It is imporant for Australians to fully accommodate themselves here in this environment, to adopt new attitudes to the physical environment and to the non-European world. So in terms of ajust settlement it seems to me that there are important questions of both land and culture to deal with.

I don't think we can afford to wait. We can't assume that things will get better. I'm reminded of those reformers of the 1830s who realised many of these problems we're talking about today, and who endeavored to bring about reform and failed. They succeeded with slavery, they failed with indigenous rights. Those issues waited for 150 years before they were resuscitated. I don't think we can afford to leave it to the next generation; we can't assume that they will be more enlightened than we are. We have to try and make a just settlement now, difficult as that prospect seems.

A paper given at the “Just Settlement” Forum, Macquarie University, 1 June 1988.